Tuesday, Jul 03 2012
• 1:29 p.m. (ET)

Free Speech, Lies And ‘Stolen Valor’

Last week, the U.S. Supreme Court overturned the Stolen Valor Act, a law that made it a crime to lie about receiving military decorations. The 6-3 decision was hailed by civil libertarians and media organizations as an affirmation that government cannot — and should not — criminalize speech, including “contemptible” lies. But many veterans say the integrity of the entire military honor system is threatened when people lie about receiving certain awards, including the Medal of Honor. We explore what comes next.

Guests

Supreme Court Decision On The Stolen Valor Act

The full text of the Supreme Court opinion in United States v. Alvarez:

Transcript

13:30:05

MR. KOJO NNAMDIFive years ago, Xavier Alvarez stood up at a public meeting and told a boldfaced lie. Speaking to colleagues at a water district in California, he claimed he'd been awarded the Medal of Honor after being injured in Iraq. That lie ended up leading to a conviction under the Stolen Valor Act, a law that makes it a federal crime to lie about receiving a military honor or decoration punishable by up to a year in prison.

13:30:32

MR. KOJO NNAMDIBut last Thursday, the U.S. Supreme Court overturned the law and Alvarez's conviction. In a 6-3 decision, the court ruled that lies, even contemptible lies, are constitutionally protected free speech. Civil liberties groups hailed the decision, but many veterans see it differently. They say these particular contemptible lies pose a threat to the integrity of the entire system of awards and honors.

13:30:58

MR. KOJO NNAMDIJoining us to discuss this is James Dao. Jim Dao is a reporter with the New York Times where he covers national security and military issues. He's co-editor of the "At War" blog at NYTimes.com. He joins us by telephone from New York. Jim Dao, thank you for joining us. Joining us by telephone from Indianapolis is Mark Seavey, Director of New Media with the American Legion. He is an Iraq war veteran and a lawyer. He's also dedicated numerous hours to detecting and publicizing people who falsely claim military honors. Mark Seavey, thank you for joining us.

13:31:35

13:31:41

NNAMDIThank you very much for correcting that for us. Joining us by telephone from Nashville, Ken Paulson. He's president and CEO of the First Amendment Center and former editor in chief at USA Today. Thank you for joining us, Ken Paulson.

13:31:55

MR. KEN PAULSONMy pleasure.

13:31:56

NNAMDIWe take your phone calls at 800-433-8850. Do you think the freedom of speech should extend to lies about military honors? 800-433-8850. Ken Paulson, I'll start with you. This case was largely obscured by the other huge ruling last Thursday upholding President Obama's health care law. But this case U.S. Force's Alvarez could also have far reaching impacts. The court was exploring whether the First Amendment protects false statements of fact made consciously but not made with the intent to defraud someone or gain anything. What did the Supreme Court majority say?

13:32:34

PAULSONWell, the court reached a decision that was both a victory for free speech and for common sense. This would've been the first time that the government would be allowed to punish you for making a false statement that didn't also involve committing another crime. I mean, if you make a false statement after swearing under oath, that is perjury. If you apply for benefits of the government and lie about it, that's fraud.

13:32:59

PAULSONIn this case, it was merely the stating of having a claim to honors that he had not earned. And this would apply to a guy having a few beers with his brother-in-law and talking a bit too much about his war experiences and exaggerating too much. The problem was this bill was badly drafted. There's a way to honor our veterans and to do battle against these people who would lie about these achievements, but this law was not the right law. It wasn't written the right way. The Supreme Court said in a very sensible decision that they could not punish people from their words.

13:33:32

NNAMDI800-433-8850 is our number. Have you served in the military? What is your view about lying and military honors? 800-433-8850. You can send email to kojo@wamu.org. Send us a Tweet at kojoshow or go to our website kojoshow.org. Ask a question or make your comment there. But Jim Dao, if you ask a First Amendment lawyer or journalist they'd probably tell you it's a slam dunk and the Supreme Court got it right. We just heard from one journalist.

13:34:02

NNAMDIBut if you ask a member of the military or a veteran the exact same question, they'd probably tell you it was a slam dunk and the court got it wrong. This issue speaks really to an interesting contrast of world views, does it not?

13:34:18

MR. JAMES DAOI think it does and I'm sure Mark can talk about this as well, as he is an actual veteran and I am not. But I think clearly this is an issue of great importance and emotional significance to veterans because there is this extensive and quite complex system of honoring valor's individual acts and acts by unit as well in war. And those medals and ribbons and that sort of thing have a great amount of meaning to people in the military. Not only for showing that individuals may act bravely but also for I think part of the point of the system is to sort of spur other service members to higher achievements.

13:35:10

MR. JAMES DAOAnd I think there's -- sort of an unspoken element of this is there's a few among certain government leaders and military leaders that this is a way of showing the public the sort of valorous events that can happen in war and in the course of doing that, perhaps encourage support for the military or military engagements. And so every time someone fakes it, it is deeply hurtful to the people in the military who feel that it sort of chips away at the significance of those awards.

13:35:48

NNAMDIMark Seavey, you come at this issue as a veteran, but also as someone who has actually done the work to identify and shame people who are falsely claiming to have won honors. If you haven't served in the military, you might not even really know that this is a problem at all. Give us a sense of scale and why this is so important from your perspective.

13:36:08

SEAVEYRight. Well, and you know, I also come at it from the perspective of an attorney so I understand the well spoken argument that Mr. Paulson makes. The one thing I disagree with him on is this isn't necessarily about someone exaggerating their war record or anything of that nature. Specifically, the Stolen Valor Act only touches people who claim they were recipients of certain medals. So if you didn't serve and then you suddenly had a story of being attacked by 40 Taliban and you heroically fought them off, that actually doesn't rise to the level of the Stolen Valor Act as it was written.

13:36:39

SEAVEYWhat would come up to that level is if you claim that you were a recipient of the Silver Star, you were a recipient of the Medal of Honor. And the reason I think the distinction is important is because while the government doesn't necessarily have an interest in cutting down on lies or things of that nature, they are constitutionally obligated to preserve the medals and the integrity of the medals under the constitution where it says that the congress will set the laws for the armies and navies and things of that nature.

13:37:06

SEAVEYSo when they talked even during the oral arguments for this case, they talked about the potential chilling effect. And even the defense attorney at that point admitted that there would be no chilling effect because it doesn't touch on other constitutionally protected speech. So I think it's important to frame the debate as this act would only have touched upon people claiming to have certain medals that they were not entitled to.

13:37:27

SEAVEYAnd as far as the distinction between the way lawyers and military people see it, I've actually seen both sides. And while lawyers can sort of sit around and discuss an issue that they're on opposite sides from, when I talk to my military friends about this, there's a very visceral reaction. And I just today have been looking through our case files and I have found 85 guys that we busted for Stolen Valor between November of last year and March of this year. So it's not just a small problem that some people think it is. It's a pretty vast problem.

13:38:00

NNAMDIAnd I guess the implication here is that when one person lies about it, or especially when more people lie about it, it's the view of the people in the military and I guess others that it denigrates the entire system and denigrates the award of the honor itself.

13:38:18

SEAVEYWell, I think that's exactly right. And I think that was a part that Justice Alito addressed quite clearly. He said the proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are. And this diluting effect harms the military by hampering its effort to foster morale in (unintelligible).

13:38:38

SEAVEYI received a Combat Infantry Badge when I was in Afghanistan. That means something deeply to me because there's only a small percentage of people that have served in the military and in the infantry and in combat. But if everyone under the sun is claiming they have a CIB, I think that necessarily dilutes the effect that mine has.

13:38:55

NNAMDIHere is Daniel in Washington, D.C. Daniel, you're on the air. Go ahead, please. Hi Daniel, are you there? Can you hear me? Daniel can't seem to hear me right now but I think Daniel had a question about why the focus on military medals. Daniel wanted to know why we can't examine malicious lies of people in power period. But it seems to me, Jim Dao, that the system of awarding military medals -- and this is really a very intricate system -- each medal means something very specific. But you think that those meanings, those nuances are very poorly understood outside the military community. Please explain.

13:39:36

DAONo doubt that they are poorly understood. I mean, they may be poorly understood within the military community 'cause there are a variety of medals. And the distinctions between them are laid out, as Mark said, I believe in -- at least in regulation and perhaps in law -- probably in law. And, you know, there's a very clear hierarchy going from the Medal of Honor down to, you know, things like the Bronze Star or, you know, Combat Infantry Badges below that.

13:40:04

DAOAnd to qualify for any of those things, you have to sort of pass, or there have to be a certain number of criteria that are checked off, and commanders write very detailed reports after events or actions to explain and justify why someone should receive an award, and it goes through a vetting process where, you know, their superiors look at it, and depending on the significance of the award, Mark may know this better than I do, it can go pretty high up the chain to at least sort of a general's level or even higher depending on the award.

13:40:45

DAOAnd so -- and what is kind of extraordinary about some of the people who do, you know, lie about these things, for instance, Xavier Alvarez, is that, you know, how many medals of honor have been awarded in the last 20 years, and not very many, and for this guy to claim he had it and not to be called out immediately is kind of, I think, probably partly an indication of how little the general public does know about these things, although he was clearly known as a bit of a fabricator.

13:41:16

DAOBut you see it in other cases as well, where people claim they won a silver star. Silver Star is a pretty big deal, but people claim it all the time, and I think the general public, perhaps not being aware of how significant one's actions have to be to win a Silver Star, may not question it simply because they're not familiar with it.

13:41:34

NNAMDIWell, Ken Paulson, we got an email from Keith in Silver Spring who writes, "I'm a Navy vet who was awarded and Navy and Marine Corps medal and have seen my service as upholding the first amendment. We can't pick and choose what is free speech. To criminalize words is insane. I respect my brothers-in-arms, but this is not the way to go." Ken Paulson, freedom of speech is not absolute though. We know that the Supreme Court has drawn a distinction between free speech and the right to yell fire in a crowded theater, but the key distinction from a first amendment perspective is the difference I guess between speech and action, right?

13:42:11

PAULSONWell, that's exactly right, and of course you mention the fire in a crowded theater. I've always pointed out that if you yell support the first amendment at the top of your lungs in that same theater, you also will be escorted out. It's not about what you said, it's about your activity, and that's an important distinction. You know, what's interesting about this debate is that everyone on the phone with you here today respects the other point of view. You know, I've got a -- certainly the gentleman online respect and understand the first amendment concerns.

13:42:38

PAULSONI have a small box in my home, my father was a disabled American vet. It contains his medals. It -- his medals. It's very dear to me. I understand the response from the armed forces to this, but like the emailer, you know, you have to begin with the very basic premise. Our nation was founded on certain core principles, and chief among them in my view is that the government may not control what god we choose to worship, will not be able to say -- control what we say, write, or petition, or to assemble in a town square.

13:43:10

PAULSONCritically important cornerstone in American democracy. So that's the rule. The government cannot punish you for what you say, except in extremely narrow circumstances, and those include things like lying under oath, or defaming someone, and then you end up in a civil courtroom. In this case, the question is, is there justification to give the government this authority they've not had before, to limit what Americans say about their accomplishments in war, and the point's well taken, is a very small and highly honored group of medals. I get that.

13:43:47

PAULSONBut I think in this case the court said, you know what, mere words can't be punished. That's not the way the first amendment works, and as we've all discussed, there are ways to make this legislation work, and ways to have those who have served this nation honored appropriately, and all you have to do is add a single line that says if you commit that lie, if you lie about your receiving these extraordinarily important medals, you -- and you also do with the purpose of defrauding others for material gain, you can go to prison. That will be upheld by the U.S. Supreme Court, and veterans and first amendment advocates alike can applaud it.

13:44:26

NNAMDIMark Seavey, do you think that's the way to go in the future or would that narrow it too much?

13:44:32

SEAVEYNo. Actually, I've thought all along that that was probably where we were going to end up, and I'm not sure that we necessarily have a problem with how we get where we're going, but just that we get there. And I think part of the thing that's lost on this is we're not talking about your garden variety of guy who is lying at a pub to pick up a girl or something like that that were being prosecuted. These were just inherently people who were engaged in some sort of activity outside of this.

13:44:58

SEAVEYIf you look at like Rick Duncan Strandlof out in Colorado, he was trying to raise money for veterans' groups and he was playing off his phony veteran credentials to do so, and he was probably guilty of a series of other crimes. If you look at Xavier Alvarez, he was already in prison for defrauding, I believe, on some insurance thing. So I don't think that if we rewrite the law we're gonna pick up a different subset. So we're perfectly fine with the rewrite as it looks like it's gonna go through in HR1775.

13:45:29

SEAVEYYou know, I disagreed with the opinion, but my opinion on the case was slightly different. I'm just not entirely sure that, you know, sort of Internet vigilantes tracking these Stolen Valor guys, and I happen to be one of them, I'm not sure that's necessarily the route we want to go down.

13:45:46

NNAMDIGot to take a short break. When we come back, we'll talk about the databases, or the lack thereof, to verify whether or not someone has indeed received a military honor, and take your calls, if you've called 800-433-8850. Otherwise, you can shoot us an email to kojo@wamu.org. I'm Kojo Nnamdi.

13:47:52

NNAMDIWelcome back to our conversation about Speech, Lies, and Stolen Valor in the wake of last week's Supreme Court decision overturning the Stolen Valor Act, which would make it a crime to lie about receiving certain military honors. We're talking with Mark Seavey. He is director new media for the American Legion. He's an Afghanistan war veteran and a lawyer. He's also dedicated a great deal of time to detecting and publicizing people who falsely claim military honors.

13:48:19

NNAMDIKen Paulson is president and CEO of the First Amendment Center. He's a former editor-in-chief at USA Today, and James Dao is a reporter with the New York Times where he covers national security and military issues. He's also co-editor of the "At War" blog at nytimes.com. You found it very interesting -- I did, anyway, Jim, that there are no official databases that exist which can serve to verify whether or not someone is indeed a recipient of these honors.

13:48:49

NNAMDIAfter all, in order to differentiate between whether someone really did earn the Silver Star or the Medal of Honor, the government would need to post all kinds of biographical information in public, and apparently that itself would create all kinds of problems in terms of maybe identity theft.

13:49:06

DAOYes. And I -- it's quite possible that there -- well, there's probably no doubt that the data exists, but the Department of Defense does not want to make it public because they say it would entail releasing private information including dates of birth and social security numbers that they don't want to release. And so they have made the case and Justice Alito echoed this in his decision that creating a public database of award winners would not be a solution to this problem because it wouldn't be all-encompassing, and you -- if you don't have details like date of birth and social security, you can't be sure that the person who claims to have won an award -- to have earned a medal is actually -- did not earn it.

13:49:57

DAOSo -- but there are efforts, privately, and I've written about this one guy, Doug Sterner (sp?) who's creating his own database, and he's just doing it individually with the help of the Military Times operation, and he's gone to records, directly to the original records, and he's looking up citations and he's manually inputting it himself, and he believes that with a little financial help, and a team of data inputters, he could get just about every major medal logged in the next couple of years.

13:50:39

13:50:44

BOBYes. Thank you, Kojo. I love the show. First, I follow the Supreme Court very closely, and I was so surprised this was not a unanimous decision. I think it was 7-2, and two justices apparently, in my opinion, let their heart overrule the law.

13:50:58

NNAMDIIt was 6-3 actually, but go ahead.

13:50:59

BOBOkay. Thank you. The reason you can't yell fire in a crowded theater is because people might die on the way out in the mayhem to exit the theater. So, the first amendment doesn't give you the right to cause or incite violence, or cause people to die by your words, but it does give everybody the right to be a complete and total jerk.

13:51:22

NNAMDIThat...

13:51:22

BOBSo when these guys do this, you have the right to follow them around, to put them on Facebook and other things, but you really can't criminalize mere words.

13:51:32

NNAMDIKen Paulson, does the Supreme Court give me the right to be an absolute jerk?

13:51:36

PAULSONWell, it seems like the jerks are the ones who wind up before the Supreme Court anyway. You know, it, you know, it allows us to be ourselves, and some of us are jerks are some are not, and I -- the point's well taken. I mean, the -- between a free press and social media, people who are jerks, people who lie about their accomplishments can be embarrassed. It's the ultimate -- see, but ultimate penalty for somebody who wants to be more than he or her is, public humiliation.

13:52:03

NNAMDIThank you very much for your call, Bob. Justice Kennedy -- Justice Anthony Kennedy had some interesting things to say writing for the plurality in case. He specifically noted that private citizens can and should play a role outing people. It isn't just for the government to do. What do you feel about that, Mark Seavey, since it's what you do.

13:52:25

SEAVEYYeah. Part of it I certainly agree with. Philosophically I agree that the, you know, the response to bad speech or fake speech is true speech. The problem is, you do get into a situation where I have -- I actually detailed it on my Burnpit blog today, where I get a lot of threats, and it's gotten to the point where now I have to -- I have to make sure that I'm armed all the time. I have to worry about legal suits that are without merit and things of that nature, and I'm put in that situation I guess willingly. I mean, I continue to do it, but it's certainly not optimal, and there are people, you know, for the 98 percent of the fakers that we get, sure, they are shameable, but there are some who are just absolutely immune to shame, and Rick Strandlof is one that I had mentioned and completely immune to it.

13:53:13

SEAVEYAnd there are others who actually revel in the fact that they're faking these types of things, and again, they are a small minority, but without any sort of, you know, ability to hold anything over them, we're kind of, you know, kind of...

13:53:27

NNAMDIWell, it's ironic that Justice Kennedy should point to you as the kind of person who should be doing what you're doing, and you saying however, you receive threats as a result of it. Who do you receive the threats from? I guess it stands to logic that people who would like about these things are people who would be defend their lives with violence.

13:53:48

SEAVEYYeah. And I mean, a lot of, you know, the most people -- the people that I get the most amount of threats from are -- are seriously unstable mentally people. And in the past when we had seriously unstable people threatening us in this nature, even if they weren't explicit threats, it takes quite a bit to raise to the level that the police will actually go after it, but we always had the fact that they were violating the Stolen Valor, so we could contact the U.S. attorneys and say, this guy's violated the Stolen Valor Act, and in addition to that, he's given us a lot of threats, can you at least look into it.

13:54:19

SEAVEYAnd generally, that sort of law enforcement mechanism would calm these people down a little. Without that at all, we have no real recourse to go to the police. You know, I'm actually supposed to be going to meet with the FBI here in the coming week over one gentleman who's been issuing threats, but I can flat out tell you right now, they're not gonna be able to do anything about it, because he's not being specific enough in his threats. And without the Stolen Valor to kind of fall back on to keep these guys from getting too outrageous, I'm not sure exactly what the answer's gonna be.

13:54:50

NNAMDIHere is Patrick in Lovettsville, Va. Patrick, your turn.

13:54:55

PATRICKYeah. I just wanted to comment on the fact that the one lawyer had said that we don't legislate other speech. We do all the time. It's perjury, it's slander, there's all kind of things. I can't go up to the Congress and lie and say I'm an aide and get into people's offices, you know. There's lots of things that we don't do. If this guy's doing it to get any kind of benefit, that's fraud.

13:55:20

NNAMDIIf the benefit is not financial, Ken Paulson, it might be to boost a career, how do you -- how does one characterize that?

13:55:28

PAULSONWell, I think it has to be some kind of material benefit, either cash or goods. I mean, apparently the caller didn't hear the first part of the conversation, but the bottom line is almost every time we punish free speech in this county, or we decide it's not free speech, it's because there's some other crime going on. You know, someone may lie as claiming an aide in Congress, but they're not being charged with impersonating a Congressional aide. They are being escorted from the building.

13:55:59

PAULSONYou know, there's a balance here, and in the history of this country basically we don't punish people for bragging, even if they're bragging with great specificity. But we can certainly punish them for fraudulent behavior, and I think that's the key here legislatively.

13:56:16

NNAMDIThank you very much for your call, Patrick. Before we go, Jim Dao, tell us about a little bit about the "At War" blog, and the rate at which medals are being dispersed right now.

13:56:28

DAOWell, you know, I can't tell you exactly. I don't know the rate at which medals are disbursed. I don't have a good handle on that. I can tell you that, you know, every -- probably every infantry unit that has been in Afghanistan or Iraq has, I'm sure most of them have had purple hearts, and perhaps bronze stars, and combat infantry badges, that sort of thing. Fewer have had silver stars, which is the third highest honor, and I think there's been a total of -- Mark may correct me on this, but maybe ten medals of honor over the past decade.

13:57:09

DAOI think maybe half or more of those who received the honor received it posthumously. So there are, you know, there are awards given out constantly, but the more significant ones are fairly rare.

13:57:24

NNAMDII'm afraid we're just about out of time. James Dao is a reporter with the New York Times where he covers national security and military issues. He's co-editor of the "At War" blog at nytimes.com. Jim Dao, thank you for joining us.

13:57:36

DAOThanks so much for having me.

13:57:37

NNAMDIMark Seavey is director new media at the American Legion. He's an Afghanistan war veteran and a lawyer. Mark Seavey, thank you for joining us.

13:57:44

SEAVEYThank you, sir. Much appreciated.

13:57:45

NNAMDIAnd Ken Paulson is president and CEO of the First Amendment Center. He's a former editor-in-chief at USA Today. Ken Paulson, thank you for joining us.

13:57:53

PAULSONA pleasure. Thanks very much.

13:57:55

NNAMDI"The Kojo Nnamdi Show" is produced by Brendan Sweeney, Michael Martinez, Ingalisa Schrobsdorff and Tayla Burney, with assistance from Kathy Goldgeier and Elizabeth Weinstein. The managing producer is Diane Vogel. Our engineer is Timmy Olmstead. Natalie Yuravlivker is on the phones. Podcasts of all shows, audio archives, CDs and free transcripts are available at our website, kojoshow.org. We encourage you to share questions or comments with us by emailing us kojo@wamu.org, by joining us on Facebook, or by tweeting @kojoshow. Thank you all for listening. I'm Kojo Nnamdi.

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